"The court has not reached this conclusion lightly," Kaplan wrote. "It is acutely aware of the perilous nature of the world in which we live. But the Constitution is the rock upon which our nation rests. We must follow it not when it is convenient, but when fear and danger beckon in a different direction."

...

He was smiling and conversing with his lawyers at the defense table after the judge ruled.

The judge issued his written three-page ruling after a hearing three weeks ago in which the witness, Hussein Abebe, testified about his dealings with authorities.

"The government has failed to prove that Abebe's testimony is sufficiently attenuated from Ghailani's coerced statements to permit its receipt in evidence," Kaplan wrote.

The defense had asked the judge to exclude Abebe's testimony on the grounds that it would be the product of statements made by Ghailani to the CIA under duress.

On that point, Kaplan said, "Abebe was identified and located as a close and direct result of statements made by Ghailani while he was held by the CIA. The government has elected not to litigate the details of Ghailani's treatment while in CIA custody. It has sought to make this unnecessary by asking the court to assume in deciding this motion that everything Ghailani said while in CIA custody was coerced."

The trial is being delayed while the government considers an appeal.

Andy McCarthy wrote about the case this morning before the judge's decision was issued and he was spot on.

The Obama administration has made Ghailani its test case to prove that the civilian criminal-justice system works perfectly well in wartime against enemy combatants — to show that we don’t need military commissions or other alternatives specially tailored to address the peculiarities of terrorism cases. The administration figured Ghailani was a safe bet. After all, the embassy-bombing case had already been successfully prosecuted once: In 2001, prior to 9/11, four jihadists were tried, convicted, and sentenced to life imprisonment (although the jury voted to spare the two death-penalty defendants).

Yet, to prove its political point that there is no downside in vesting Ghailani — a Tanzanian national whose only connection to the United States is his decision to make war on it — with all the constitutional rights of an American citizen, the Justice Department has had to slash its case. DOJ is also finding that even more critical evidence may be suppressed by the trial judge. In short, the slam dunk has become a horse race, one the government could actually lose.

So now what will the administration do? If they can't try Ghailani in civilian court or worse yet, he is ordered freed, will the government simply say too bad and ship him back to Gitmo? Or will they let a confessed mass murdering terrorist go free simply because they wanted to make some point about how smart they are and how stupid those Bush fools were?

Of course, the left will say if Bush hadn't 'tortured' this guy none of this would be a problem. They will simply ignore the fact that Ghaliani and his ilk aren't criminals but terrorist scum waging war against America. Car thieves and murderers get due process, not terrorists. Not until now anyway. Thanks Obama!

I think Eric Holder can forget about his dream of trying Khalid Ssheikh Mohammed in civilian court.